"Being an activist is the rent we pay for being on the planet." Alice Walker

Bush has promised to "consult" with Congress over his nominee to replace Sandra Day O'Connor on the Supreme Court. And true to his word, he's meeting with the party leaders and ranking members of the Judiciary Committee from each party. But. That's just a meeting and while I'm glad it's happening, I'm not sure his consultation with them will have as much heft as the non-governmental groups advising him.

Apparently, according to the Washington Post, Bush has outsourced much of the planning for the nomination to leaders of these outside groups - the Committee for Justice, the American
Center for Law and Justice, and the Federalist Society. These aren't mainstream groups - they're very conservative.

The plan is for the Federalist Society to do the research on the nominee and for a fourth group, Progress for America, to spend as much as $18 million promoting the nominee. The Judicial Confirmation Network will organize grassroots support in six states, where key Senators in the confirmation process reside. Apparently, each group has it's own role to play.

These groups could certainly work together, independent of the government, to support the President's nominee. What bothers me isn't that they're working with each other - it's that they're working with the White House. It's the merging of private groups with government.

Unlike Bush, who at least gives lip service to the idea that he's everyone's president, these groups have no intention of representing every Americans; they only represent those who agree with their extreme conservative ideology. They're goal is to impose their worldview on the rest of us, to pressure the President to hew to a hard line conservative position. They aren't serving at the pleasure of the President - they're serving at their own pleasure with their own agenda and their own constituents.

The line between public and private institutions is so blurred as to be
virtually indistinguishable. And the real problem here is that these
private groups are not accountable to the public despite their
quasi-governmental role. We didn't elect C. Boyden Gray and his co-horts. They aren't subject to
federal background checks or campaign finance laws or disclosure laws or any real transparency.
They are private groups. They're working hand-in-glove with the administration
to sway pubic opinion. We should start treating them as extensions of
the administration, holding them to the same standards we use with
public officials. If they are doing the President's business, then
they're doing our business. Even though they weren't elected.

People can argue all they want about whether the ideology of judicial nominees is sufficient grounds to block their appointment to the bench. Reasonable people come down on opposite sides of the argument.

But I don't know how any American commitment to the fundamental notion that we are a constitutional democracy that can make a compelling argument for supporting a nominee who believes that precedent or existing laws take a backseat to a "higher authority" when making decisions from the bench. That's what the latest confirmed nominee, Janice Rogers Brown, believes.

Looking to higher authorities for the answers on what the law means and whether it has been applied appropriately - to higher authorities instead of precedent or our founding documents - turns the law into a subjective, relative thing.

We don't need any more judges that go beyond the law to interpret the law. We've already got one Supreme Court Justice, Clarence Thomas, who doesn't find precedence that relevant. And we've got another, Justice Scalia, who thinks that government derives it's authority from God instead of from the people or the law. We really don't need to further weaken our character as a nation of laws by confirming more judges that put their understanding of God's law above the actual law when they do their job.

I really don't understand why this is okay with so many people. Are they so sure that these judges will have the same understanding of the "higher authority" that they do? With the immense history of religious schisms and infighting in the Christian community, I think they're making a remarkable leap of faith. One that puts us all at risk.

So it looks like Judge Patricia Owen's nomination to the appellate courts will be sent to the Senate floor. Opponents to her nomination take great pleasure in citing the judgment of Bush favorite, Attorney General Alberto Gonzales.

The Gonzales cite comes from the time when both Gonzales and Owen served on the TX Supreme Court. They heard a case involving abortion and the rights of a minor to obtain the abortion without parental notification. The law stated that the minor had to be mature enough to understand the consequences of having an abortion. In the case in question, the majority opinion was that the minor did have the requisite maturity. But Owens and two of her colleagues disagreed. Gonzales responded to their minority position by declaring that they're opposition was "an unconscionable act of judicial activism."

Ah, the US Attorney General has identified a Bush judicial nominee as a judicial activist. Huh.

Of course, this is awkward for Gonzales and he undoubtedly fidgets and squirms every time he is quoted. It's not easy to disassociate from statements made from the bench. But Gonzales has found a way. He's claiming that he didn't really mean that Owens was a judicial activist. All he meant was that if he had made the judgment they did, then he would have been a judicial activist. But just because that's true for him doesn't mean it's true for the other judges.

Wha?

Let me get this straight. If Gonzales interprets the law one way, it's judicial activism. That means he's imposing his moral views on the law, effectively rewriting the law to match them. But if other judges interpret the law in the exact same way, it's not. The real message here is that the law is relative. Or Republicans are. I think it's the latter.

On the Sunday show This Week, Sen.Rick Santorum (R-PA, known in liberal circles as "man on dog" Santorum for his association of homosexuality with bestiality) made the following comment.

"Should we look at situations where
judges have decided to go off on their own tangent and disobey the
statutes of the United States of America? I think
that's a legitimate area for oversight, sure." (WaPo)

The irony here is that there is no explicit authority in the Constitution for the Congress to exercise oversight of either the executive or judiciary branches of government. Their oversight authority was explicity assigned by, who else, the Supreme Courrt. But that oversight is limited to the executive branch - the administration and federal agencies.

Santorum wants to take that Congressional oversight a few steps forward and grant Congress the right and duty to impeach judges. Not all judges, mind you, but just the ones whose legal decisions don't square with Santorum's religious conclusions. They don't have that right.

The further irony is that this Republican Congress has been the target of well-deserved criticism for not exercising the oversight authority it has, particularly in the run up to and the conduct of the war in Iraq - most particularly the administration's use of intelligence to justify it.

Congress ought to exercise the oversight it's supposed to exercise before looking for more.

Some Americans on the political left have been raising the specter of fascism in their opposition to the Republicans. The accusation that the Republicans are moving us towards a fascist state has been compelling to some but the general response has been that our Constitutional government has built in barriers to prevent tyranny. The right has dismissed those expressing fears of fascism as liberal loonies, unmoored in reality.

But when a group of conservatives meet for the express purpose of restricting the independence of the judiciary, when the executive committee of the group sponsoring the conference reads like a "who's who" of religious conservatives, and when a speaker at the conference quotes Stalin as the authority for the right way to deal with "supremacist judges", then the fears of the far left gain credence.

That's exactly what happened at the "Stop Activist Judges" conference organized by the Judeo-Christian Council for Constitutional Restoration. The conference was designed to "address judicial tyranny from a faith perspective". The participants want to impeach judges, limit the judiciary's power to review legislation on subjects like public prayer, religious displays, same-sex marriage, empower Congress to vacate legal decisions, and eliminate the court's reliance on binding precedence. They believe the country's biggest problem is the independence of the judiciary and not the war on terror or the deficit. They refer to judges as upholders of satanic principles, a 'politburo', and radical relative secularists.

The executive committee of JCCCR includes conservative heavyweights like Phyllis Schafly and Rick Scarborough. Speakers at the conference are much more familiar to the average citizen, given that many of them are members of Congress. They included Congressmen Bill Dannemeyer and Lamar Smith, who appeared in Tom DeLay's place (since he went to the Pope's funeral). Staff members from the offices of Senators Hatch and Coburn were speakers. They were on the schedule with representatives of leading conservative groups like the Heritage Foundation, the Eagle Forum, Family Research Council, Concerned Women for America, Vision America, and a host of other such groups.

And the reference to Stalin as a model for responding to the "out of control judiciary"? That came from Edwin
Viera, a constitutional lawyer who said that Stalin provides the model for
dealing with Supreme Court Justice Kennedy: "no man, no problem". Viera is calling for
Kennedy's impeachment, but he does so by quoting Stalin's method of
killing his opponents. The full Stalin quote, supplied by WaPo reporter Dana Millbank, is ""Death solves all problems: no man, no problem."

This is it. The real face of the extreme right. David Brooks can proclaim the superiority of the conservative movement because of its reliance on great philosophers and disparage liberals as unmoored in philosophical thought, but when the reliance extends to include Stalin his claims ring hollow. There should be a wholesale repudiation on the right of this speaker, this conference, and this attack on our Constitutional separation of powers. It won't come though. We'll wait in vain.

An article in the Washington Post declares that the GOP is fracturing over efforts by DeLay and his ilk to curb the independence and power of the judiciary. Certainly, the campaign against so-called activist judges is dear to the far right, including the extreme religious right. But those who would support the efforts of these Republicans to expand the reach of Congress over the judiciary are abandoning their federalist roots. A key issue covered in the federalist papers written by our founding fathers was the need for the judiciary to be independent in order to prevent Congress from becoming a collective tyrant, something Jefferson called "elective despotism". That's what we face if the extremists are successful in their efforts to limit or end the independence of the judiciary. Traditional Republicans would do well to shut down their anti-judiciary brethren if they have any desire to retain their vaulted philosophical underpinnings.

For details on the federalist papers' discussion on the independence of the judiciary and the extreme right's efforts to limit that independence, see this earlier lengthy post on Citizen's Rent.

I don't support the death penalty - a position that I occasionally question. I don't support the infusion of religion into government or the courts - a position I never question. So it's odd for me to find that I disagree with the Colorado Supreme Court's decision to toss out a sentence to death because jury members consulted and referenced the Bible during their deliberations.

On the face of things, it seems like an easy call. The jury used a religious text to determine a legal finding. The assumption is that in the same way that they can't use newspaper articles to influence them, they can't use the Bible. BUT, the judge instructed them specifically to make an "individual moral assessment", not a legal one. Is it so surprising that one or more jurors use the Bible to inform their moral code, that they would turn to it in making a moral assessment that involves the ending of someone's life? Honestly, the Bible could be used to justify a sentence of death or to deny it. You can take your pick between judgment and mercy. It's not like there's a consistent message running through the text that says execute kidnapping rapist murderers. The jury members referencing the Bible had to make their own moral decisions. Does the Leviticus call for an "eye for an eye" outweigh Christ's command that "he who is without sin cast the first stone"? Which wins - judgment or mercy? The answer is an individual one, a moral one. Figuring it out is exactly what the judge instructed the jurors to do.

It's interesting that if the jurors had only quoted the Bible instead of actually reading it, the sentence wouldn't have been thrown out. That seems odd to me. The problem here is that the jury was instructed to make a moral decision, not a legal one. I would think that the moral question had been answered during voir dire, when the prospective juror is asked if they are willing to impose the death penalty. If they can answer that, the only remaining question is whether there is a legal basis to do so in the specific case. I must not understand how our system works if the sentencing is based on moral assessments and not legal ones. It's a concern if it's true.

On a final note, it's ridiculously hypocritical that the defense made repeated references to the guilty man's Bible reading with his father and called for the mercy God showed Abraham and then used the jurors use of the Bible in their "individual moral assessment" as a basis for getting their decision thrown out.

In all the debate and discussion on the fate of Terri Schiavo there is one thing that truly scares me. It isn't the threat of impending euthanasia for the elderly or disabled. It isn't the politicization of a painful family disagreement and the life that hangs in the balance. It isn't the thought that Terri Schiavo might die or even that she might live for thirty years in a vegetative state. It's that our government is in the control of people who have no respect for the Constitution, that these people are driven by others who don't understand or support the separation of powers that protects us from tyranny. They don't understand that our government, our country, is a Constitutional Republic in which the will of the majority does not predominate but instead is limited by the Constitution, the fundamental law of the land. These people aren't the majority in the populace, but they control the majority of the politicians in the executive and legislative branches, and therefore they espouse majority rule.

They don't want majority rule if the majority is the American public. The majority of the American public does not support Congressional intervention in the case of Terri Schiavo. It does not support overturning Roe vs Wade. It does not support censorship, religious litmus tests for politicians, or discrimination against homosexuals. BUT, their elected representatives don't reflect the will of the majority - they reflect the will of this politically active, connected, funded minority. So this minority is more than happy to endorse a government that puts majority rule above the Constitution as long as the majority being counted is the elective body and not the people. What they want is "elective despotism". But I'm with Thomas Jefferson, who said in his Notes on the State of Virginia that "an Elective Despotism was not the government we fought for". That was true then and remains true today, and yet we are closer to "elective despotism" than ever before.

This support for, demand for, elective despotism is the threat that faces us. That minority who controls the governing majority believes in the supremacy of their will over the fundamental laws in the Constitution, a belief justified by citations of God's law and will. This, combined with the willingness of the politicians that count on the believers for their continued service in office creates the groundwork for elective despotism, a world in which the elected representatives of the people act in opposition to the law and in concert with their supporters goals.

Think I'm exaggerating, that the extremist right -religious and not - isn't calling on our elected representatives to ignore the law? Then check out these excerpts from conservative articles and blogs (apologies to the true conservatives for lumping these folks in with you):

"It is a mistake to believe that the courts have the ultimate say as to what a constitution means." AND "Governor Bush pledged to uphold the Florida constitution as he understands it, not as it is understood by some Florida judges." Conservative grand daddy Bill Bennet in the National Review

"Governor Bush needs simply to intervene, to protect this woman's life, to look the court in the eye and say, as President Andrew Jackson did, "You've made your ruling. You enforce it." They can't enforce it, of course, because they have no executive power to do so." AND "The covert assumption of the executive power by the judiciary in the Schiavo case has become an ideal example of the judiciary's continuing assault on the moral sense and sensibility of our people, an assault that continues, in this case, in contravention of the will of the people as expressed in Florida in the state legislature, by the governor, now by the Congress of the United States." Renew America post in which the usurpation of the judiciary's role as interpreter of the law is justified on the basis of a the separation of powers, amazing logic acrobatics.

"What was supposed to be the "least dangerous" branch has become the most dangerous – literally to the point of ordering an innocent American woman to die, and willfully disregarding congressional subpoenas. They can't be stopped – solely because the entire country
has agreed to treat the pronouncements of former ambulance-chasers as the word of God." Starved for Justice, Ann Coulter

"True, there is an arguable federalism issue: whether taking the issue out of a state's jurisdiction is constitutional. But it pales in comparison with the moral issue."In Facts First, Fred Barnes, the Editor of the Weekly Standard, makes it clear that the law is subordinate to morality - the question is "whose morality?"

The argument being made is that the executive and legislative branches aren't subject to the rule of the judiciary, that moral law takes precedence over civil law. This challenge to the judiciary is an extension of the lamenting from the right over activist judges (an irony here since the only way their efforts to save Schiavo would have succeeded would be if the federal judges were activists and ignored legal precedents). I've been watching the extreme right as they gear up to attack the judiciary and stack the bench. It's a priority for them, as high on the list as overturning the right to abortion and preventing gay marriage. It's just not as public. Consider this:

Jerry Falwell wants to pass "many amendments" to the Constitution to put 'important issues' out of the reach of judges. (See here.)

James Dobson of Focus on the Family is threatening Democratic Senators with campaigns to oust them in the next election unless they support "strict constructionist" nominees for the Supreme Court. (See Arran's Alley post.)

Part of the Republican's agenda is to reform government, which includes limiting the judiciary's ability to rule on the constitutionality of specific legislation and impeaching judges who make unpopular legal decisions. (See here.)

In early April, experts on "judicial tyranny and the attack on religious faith are hosting a meeting in DC to discuss how "people of faith" can fight back against judicial activism. Who will be speaking? None other than Tom DeLay. He'll be joined by Phyllis Schafly, Sen. Brownback, and former and disrobed Alabama Chief Justice Roy Moore. (See here.)

It's no secret that the extreme right wants to undermine the judiciary. But I'm not sure the left is paying attention to this latest organized effort to remove barriers to a government that is subject to "natural law" (i.e fundamentalist Christianity).

The judiciary is the weakest branch of the federal government. It is tasked with settling federal and interstate disputes and interpreting the law. There is no provision for rejecting the court's interpretation of the law. if the executive or legislative branches don't agree, they are free to pass a law or sponsor an amendment to the Constitution. They are not free to disregard the law.

The extreme right wants the other branches of government to disregard the law as interpreted by the judiciary. That's exactly what happened when Congress intervened in the Schiavo case. They disregarded the Constitutional separation of powers and the Constitutional rights of the federal vs state courts. They posit that when an executive leader or legislative body disagrees with the legal interpretation of the courts, they are duty bound to ignore the courts. They claim that the judges are not interpreting the law, but that instead they are imposing their own morals upon the law. They are using the law to enact their own views, i.e. they are activist judges.

It's not like the concept of activist judges is new one. The founders were well aware of the risk of activist judges. Ironically, their concern was that judicial decision would be made with an eye towards the political or personal - that they would reward their supporters with favorable judgments or base their judgments on what they thought would ensure tenure on the bench. It is for this reason that federal judges are given life-time appointments, to reduce the possibility that they will be "activist judges". Now the Republicans want to undermine this by impeaching judges whose decisions they don't like. There is a provision for impeaching judges but it's based on moral conduct, not agreeable decisions.

I wanted to understand the role of the judiciary so I went back and read some of the Federalist papers. The most relevant ones were numbers, 47, 48, and 78. The last deals specifically with the possibility of activist judges. The others address separation of powers. It's most interesting to me that these founding fathers considered the legislative branch to be the most likely usurper of power.

Will it be sufficient to mark, with precision, the boundaries of these departments, in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power? This is the security which appears to have been principally relied on by the compilers of most of the American constitutions. But experience assures us, that the efficacy of the provision has been greatly overrated; and that some more adequate defense is indispensably necessary for the more feeble, against the more powerful, members of the government. The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex. (Translated: Is it enough to simply define the boundaries between the branches of government? Experience tells us no. The weaker branches of government need more protection from the stronger branches - you see, the legislative branch won't limit itself in its power grab.)

A respect for truth, however, obliges us to remark, that they seem never for a moment to have turned their eyes from the danger to liberty from the overgrown and all-grasping prerogative of an hereditary magistrate, supported and fortified by an hereditary branch of the legislative authority. They seem never to have recollected the danger from legislative usurpations, which, by assembling all power in the same hands, must lead to the same tyranny as is threatened
by executive usurpations. (Translation: To be honest, we must admit the the legislature hasn't forgotten that hereditary government is a danger to liberty. But they don't see that if they usurp the power of other branches of government, they'll bring tyranny.)

Madison gives us further warning of impeding tyranny with this comment, which should be read with the understanding that the power of the executive and legislative branches is already concentrated in the hands of an extremist minority.

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. The Federalist No. 47 JAMES MADISON, FEBRUARY 1, 1788

This, then, is our challenge. To fight the impending tyranny that Madison warned against, to fight the elective despotism that Jefferson refused to accept. Call it theocracy, tyranny, despotism, wing-nuttery. Call it anything you want. But don't take it lightly, don't assume it can't happen here, don't assume that someone else will stop them. The events surrounding the Terri Schiavo case bring to light the extremism we face and the disregard for the law embraced by the executive and legislative branches of government. If we don't protect the judiciary's independence then all is lost.

For more relevant excerpts from the Federalist No. 78 on the separation of powers and activist judges, go to the jump...

I'm waiting to hear screams of protest over the latest judicial activism. I'll wait in vain.

I'm not talking about the NYC judge who said same-sex marriage is permitted under the state constitution. We're already hearing screams of protest there.

I'm talking about the judge in Cook County, IL who said in a wrongful death suit over the accidental discarding of a frozen embryo: "A pre-embryo is a 'human being' ... whether or not it is implanted in its mother's womb." THAT's a clear-cut case of 'judicial activism' but somehow I don't think we'll hear much about it from the far right groups that accuse the courts of activism whenever they rule in favor of same-sex marriage or against the infusion of religion into government.

One thing I'd like to know is what qualifies as a 'pre-embryo'. And if he's right, what happens to the infertile couples who discard the harvested embryos they don't need. This ruling isn't an immediate risk to abortion rights but it's a huge threat to stem cell researchers and the fertility industry.

I've been doing a lot of reading lately on the issue of judicial activism, since it seems to be a top priority for many 'wingers, including the politicized religious right. Combine that with the occasional post in the blogosphere that we should embrace states' rights as a means of fighting the legislation of right-wing morality and the issue gets really interesting.

I suspect I'll post on this topic in more depth as my research continues (I'm even thinking of writing a book on the topic), but I'm spurred to comment now given Adam Cohen's piece in today's op-ed section of the New York Times. Cohen introduces us to the conservatives' attraction to undermining constitutional support for federal powers to legislate in the public interest. Such legislation includes laws that cover minimum wage, workplace protections, consumer protections, prohibitions against child labor, environmental protections, and federal social service programs.

Cohen makes it clear that there's no expectation that the Supreme Court will overturn the key past decision that opened the door to the expansion of federal powers, the case of Wickard v Filburn. If I understand it correctly, this case introduced the idea that Congress could legislate in areas where one state's actions affected another state, even if there's no interstate commerce. The conservatives want to roll it back, to limit the power of the federal government.

Support for a states' rights plank has been raised on the left as a means of fighting the right's nanny-state legislation of morality (or the lack thereof). Whether it's gay marriage, abortion rights, gun control, abstinence education, marriage incentives, or similar areas where legislators are using the law to influence social mores, states' rights advocates argue that we are better able to fight regressive laws at the state level, especially where the majority population leans left on an issue. Certainly it would be a grand social experiment with blue states legislating leftward and red states tilting right. Nevertheless, the risks are huge. Cohen puts it this way:

In pre-1937 America, workers were exploited, factories were free to pollute, and old people were generally poor when they retired. This is not an agenda the public would be likely to sign onto today if it were debated in an election. But conservatives, who like to complain about activist liberal judges, could achieve their anti-New Deal agenda through judicial activism on the right. Judges could use the so-called Constitution-in-Exile to declare laws on workplace safety, environmental protection and civil rights unconstitutional.

The interesting note here is the charge of judicial activism by the right. I've grown increasingly convinced that the right uses the courts as much as the left, with as much success, to strike down laws they don't like and to carve out rights (particularly related to religion) that they do like. The difference is that when it's done on the left, it's labeled judicial activism. When it's done on the right, it's protecting our kids or some such nonsense. We've got to call them out on this. For example, the California teacher who is suing for the right to use supplemental materials that promote a view of the US as a Christian nation is an effort to inspire conservative judicial activism. That suit is being brought by the Alliance Defense Fund, an organization whose sole purpose is to use the courts to promote its founders' world view. They spend $16 million a year pursuing their goals.

ADF was founded by 30 conservative religious organizations. Today, it works with over 125 organizations and over 700 allied attorneys to coordinate action on the issues of religious freedom, abortion, and the ubiquitous family values. ADF provides strategy and coordination, training, and funding for organizations in their alliance. They occasionally take on litigation themselves. They are an alliance of legal organizations, specifically focused on obtaining their goals in the courts. On the face of it, that's great. The courts are for everyone and they have as much right to go to court as anyone else. The problem, however, arises in their use of the courts to achieve a religious agenda. Again, they can do this just like everyone else. But the politicized religious right that supports them better shut up about judicial activism, since that's exactly what the ADF is courting.

The right accuses judges who see the Constitution as a living document of being activist judges. However, the right wants those judges to ignore precedent, to roll back the clock. It's cloaked as traditionalism, but that's activist too and I'm not ceding the language to the right. When judges agree with them, they hail the good judgment shown. When judges disagree with them, they accuse the judges of making law instead of interpreting it, of using the bench to encode their liberal views into law.

That's where I trip up. I think about the Massachusetts decision supporting gay marriage and I don't see any Constitutional basis for denying it. These "strict constructionists" argue that the decision was a policy decision but they base that not on any specific text in the state Constitution but on the "historical context" in which it was written. They're not objective in their presentation of this context, they aren't literal in their interpretation of the Constitution - they are subjectively determining the meaning of the law. When they decry the application of equal protection for homosexuals, the application of constitutional protections to a specific group of people, I believe they are complaining that the law has not been used to create policy of their liking. If the decision had been against gay marriage, if such marriage was banned, they would have trumpeted their success - they wouldn't have mentioned the policy aspect of the decision. The reality is that those who complain about judicial activism are simply upset that the decisions don't support their preferred policies.

It will be interesting to learn how any limitation of federal legislative powers decreases the power of the courts. I suspect there's a strong connection between the desire to limit judiciary intervention and fights to increase states' rights. But I need to do more reading to really understand how that would work. If anyone has any suggested resources for me, I'm eager to find them.